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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Moloney -v- Kelleher [2014] IEHC 358 (17 July 2014)
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Cite as: [2014] IEHC 358
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Judgment Title: Moloney -v- Kelleher Neutral Citation: [2014] IEHC 358 High Court Record Number: 2012 4158 P Date of Delivery: 17/07/2014 Court: High Court Composition of Court: Judgment by: Kearns P. Status of Judgment: Approved |
Neutral Citation: [2014] IEHC 358 THE HIGH COURT [2012 No. 4158P] BETWEEN JOHN MOLONEY PLAINTIFF AND
MICHAEL KELLEHER (AS NOMINATED DEFENDANT FOR THE REDEMPTORIST ORDER) DEFENDANT JUDGMENT of Kearns P. delivered on the 17th day of July, 2014 By notice of motion dated 25th November 2013 the respondent seeks an order striking out the plaintiff’s claim pursuant to the inherent jurisdiction of the Court on grounds of inordinate delay and/or inordinate and inexcusable delay in the commencement or prosecution of these proceedings. Further, or in the alternative, an order is sough striking out the plaintiff’s claim pursuant to the inherent jurisdiction of the Court in the interests of justice. BACKGROUND In 1993/1994 the plaintiff attended a therapist named Ms. Anne O’Neill. Shortly after commencing these therapy sessions the applicant, apparently without any planning or discussion, walked into the Redemptorist Monastery in Limerick in November or December 1993 and told the priest at reception that he wished to make a complaint of sexual abuse against a brother in the Order. His contact details were taken and some days later he was contacted by a Father Tony Flannery and a meeting was arranged. This meeting took place shortly thereafter and was attended by the plaintiff, Fr. Flannery and two other priests. The plaintiff outlined the allegations of abuse in detail and answered all questions which were put to him. A record of this meeting states that the plaintiff alleged that there were four instances of abuse, two of which took place while on an excursion to a nearby beach led by Brother Majella, and another which occurred in the parlour of the monastery. It is noted that the fourth incident is alleged to have taken place in the sacristy but the plaintiff did not go into detail in relation to this incident. Some weeks later another meeting was arranged, this time in Jury’s Hotel, Limerick, and was attended by the plaintiff and the same three priests. This meeting lasted approximately ten minutes. The applicant states that he was informed that Brother Majella had been confronted with the allegations and had firmly denied them. Brother Majella had been sent for assessment at the Our Lady of Victory ‘Stroud Institute’, a residential treatment centre for priests with certain addictions, and the plaintiff states that the three priests informed him that this assessment found that Brother Majella was innocent of all of the allegations against him. According to the plaintiff the priests offered to provide two therapy sessions but stressed that this was out of a pastoral concern rather than an acceptance of any form of liability. The plaintiff states that following this meeting and in light of the manner in which his complaint had been handled by the Order, he was left feeling humiliated and rejected. He says that he felt let down and was profoundly shocked and upset that he had been disbelieved. His suicidal thoughts and feelings of depression were exacerbated and he began drinking heavily. His therapy sessions with Ms. O’Neill ceased abruptly as he was no longer able to abide by a ‘non-self harm undertaking’ he had given her. In the summer of 1994 he attended an Alcoholics Anonymous meeting and continued to do so for a period of two years. While the plaintiff says that this allowed him to get some aspects of normality back into his life, he states that he continues to experience the same feelings of despair and depression and that, owing to a fear of rejection, he was completely incapable of making another complaint until 2010. In 2008 the plaintiff informed his then solicitor of the abuse but did not feel capable of making a formal complaint at that time. According to the replies to particulars, the plaintiff attended a psychotherapist for approximately one year commencing in 2002 and again for one year in 2007. He attended a psychotherapist for three years between 2008 and 2011 and attended Dr. Tessa Neville and Dr. Patricia Noone, both consultant psychiatrists, in September and December 2011 respectively. In January 2010 the plaintiff made a formal complaint to the Gardaí and, following authorisation by the Personal Injuries Assessment Board on 2nd December 2011, the personal injuries summons in these proceedings issued on 26th April 2012 PLAINTIFF’S SUBMISSIONS The decision of Hogan J. in II v. GG (Unreported, High Court, 5th July, 2012) is relied upon as authority for the proposition that in cases of alleged sexual abuse, periods of inordinate delay are often found to be excusable having regard to the circumstances -
The plaintiff contends that the principle as set out in Toal v. Duignan (No.1) [1991] ILRM 135 and confirmed in Toal v. Duignan (No.2) that proof of culpable negligence on the part of the plaintiff in issuing proceedings is not a prerequisite to an order to dismiss a case on grounds of delay does not arise in this case. In Toal v. Duignan (No.1) Finlay C.J. stated -
It is submitted that the documents obtained on discovery in this case reveal quite clearly that the Redemptorist Order concluded from their own investigation that the plaintiff had been sexually abused by Brother Majella. A letter dated 27th January 1994 from Rev. David Fitzgerald, Program Director at Our Lady of Victory, Stroud Institute, Gloucestershire, where Brother Majella was assessed following the plaintiffs complaint in December 1993, to Rev. Brendan Callanan states as follows -
However, the seriousness of the issues which have surfaced during his evaluation will warrant further attention. We therefore recommend that Fr. Carey enter into bi-monthly spiritual direction with a priest or religious brother who is well informed regarding psychosexual issues. The period of intense spiritual direction should continue for approximately one year. We do not advise in-depth psycho-analytical therapy at this time primarily because of Father Carey’s limited ego defences and because of the intense anxiety level he experiences under stress…”
I took his allegations very seriously Have made enquiries with professional help THERE ARE INDICATIONS THAT SOMETHING INAPPROPRIATE HAPPENED: IT WAS ISOLATED HAS LONG SINCE CEASED X HAS RECEIVED PSYCHOLOGICAL/PSYCHIATRIC HELP X IS FOLLOWING ADVICE GIVEN BY THESE PROFESSIONALS FROM A PASTORAL CONCERN POINT OF VIEW WOULD BE WILLING TO HELP WITH HIS COUNSELLING EXPENSES: WHAT WOULD HE SUGGEST/EXPECT IN THIS REGARD?” DEFENDANT’S SUBMISSIONS
Also, if a defendant can establish that a lapse of time for which he is not to blame is such that there is a clear and patent unfairness in asking him now to defend the claim then he may also be entitled to an order to dismiss. This entitlement derives principally from the constitutional guarantee to fair procedures in Art.40.3 of the Constitution.”
Different considerations, I suggest, arise in relation to pre-commencement delay which is inordinate and yet excusable. There can easily be circumstances in which, in such a case, the balance of justice would be in favour of dismissing the claim. For example, even if Kelly J. had in Kelly v. O'Leary [2001] 2 I.R. 526 found that the delay of 50 years was excusable, he could well have reached the conclusion based on the facts and circumstances of that case, that the defendant was so prejudiced as to her ability to defend the proceedings after such a passage of time, that the claim ought not to be allowed to proceed. That inordinate and excusable delay is of such a completely different category to the type of delay outlined in Primor plc. v. Stokes Kennedy Crowley [1996] 2 I.R. 459, that it is perfectly understandable that a different rule should apply as to how the courts should assess the significance of the delay.” In relation to the letter dated 27th January, 1994 from the Stroud Institute, Fr. Callanan states that to the best of his recollection the reference therein to the “seriousness of the issues which have surfaced” during the assessment related not to a finding that any abuse had occurred, but rather Brother Majella’s profound immaturity and personal development issues and that these would have included psycho-sexual issues. He states that David Fitzgerald of the Stroud Institute advised him at the time that “there were not substantial reasons to believe that the alleged incidents were likely, but rather they were unlikely”. In relation to the disputed memo, Fr. Callanan states that the use of the word “inappropriate” would have included issues such as ‘horseplay’ by a member of the congregation and it was considered that anything more than this was unlikely to have occurred. The defendant submits that under the line of authority originating with O’Domhnaill, the balance of justice is the determinative factor for the Court to consider in this case. It is submitted that the factors to be taken into account in determining where the balance of justice lies include the following as laid down by Hamilton C.J. in Primor: -
(ii) whether the delay and consequent prejudice in the special facts of the case are such as to make it unfair to the defendant to allow the action to proceed and to make it just to strike out the plaintiff's action, (iii) any delay on the part of the defendant — because litigation is a two party operation, the conduct of both parties should be looked at, (iv) whether any delay or conduct of the defendant amounts to acquiescence on the part of the defendant in the plaintiff's delay, (v) the fact that conduct by the defendant which induces the plaintiff to incur further expense in pursuing the action does not, in law, constitute an absolute bar preventing the defendant from obtaining a striking out order but is a relevant factor to be taken into account by the judge in exercising his discretion whether or not to strike out the claim, the weight to be attached to such conduct depending upon all the circumstances of the particular case, (vi) whether the delay gives rise to a substantial risk that it is not possible to have a fair trial or is likely to cause or have caused serious prejudice to the defendant, (vii) the fact that the prejudice to the defendant referred to in (vi) may arise in many ways and be other than that merely caused by the delay, including damage to a defendant's reputation and business.”
(a) that a lengthy lapse of time between an event giving rise to litigation, and a trial creates a risk of injustice: "the chances of the courts being able to find out what really happened are progressively reduced as time goes on"; (b) that the lapse of time may be so great as to deprive the party against whom an allegation is made of his "capacity … to be effectively heard"; (c) that such lapse of time may be so great as it would be"contrary to natural justice and an abuse of the process of the court if the defendant had to face a trial which (he or) she would have to try to defeat an allegation of negligence on her part in an accident that would taken place 24 years before the trial …"; (d) that, having regard to the above matters the court may dismiss a claim against a defendant by reason of the delay in bringing it "whether culpable or not", because a long lapse of time will "necessarily" create "inequity or injustice", amount to "an absolute and obvious injustice" or even "a parody of justice"; (e) that the foregoing principles apply with particular force in a case where "disputed facts will have to be ascertained from oral testimony of witnesses recounting what they then recall of events which happened in the past …", as opposed presumably cases where there are legal issues only, or at least a high level of documentation or physical evidence, qualifying the need to rely on oral testimony.”
2. the nature of the claims; 3. the probable issues to be determined by the court; in particular whether there will be factual issues to be determined or only legal issues; 4. the nature of the principal evidence; in particular whether there will be oral evidence; 5. the availability of relevant witnesses; 6. the length of lapse of time and in particular the length of time between the acts or omissions in relation to which the court will be asked to make factual determinations and the probable trial date.” Counsel for the defendant submits that the prejudice suffered by defendant in this case is so severe that even if the Court finds that the plaintiff is not culpable for the delay, the balance of justice favours dismissal. It is contended that the death of Brother Majella means that the testimony of the plaintiff would go entirely unchallenged. The discovery process has shown that no records relating to abuse of others or which might support the plaintiff’s claims exist. The monastery building has undergone substantial refurbishment and key locations no exist or have been fundamentally altered. Records of persons who travelled on excursions such as the beach trips where two of these incidents allegedly occurred are no longer traceable or have been destroyed. Indirect witnesses cannot now be effectively identified and even if they were their memories are likely to be grossly impaired by the enormous passage of time. In addition to this, the plaintiff has initiated separate proceedings against two other alleged abusers and there is a risk of conflation with these complaints and difficulties arise in relation to causation. DISCUSSION The defendant asserts that the period of delay from 1993 until 2008 when the plaintiff maintains he informed his solicitor of the abuse and to 2010 when a complaint was made to the Gardaí is inexcusable in itself and also cumulatively with the preceding period of delay. I have carefully considered the evidence in relation to the plaintiff’s complaint in 1993 and the manner in which it was subsequently handled by the defendant. While the Court will consider the status of the relevant documents relating to the defendant’s investigation of the alleged abuse in greater detail herein, I am satisfied that following his second meeting with members of the Order at Jury’s Hotel, the plaintiff held a genuine belief that he had been disbelieved. It does not necessarily follow that this was due to any fault of the defendant or that the actions of the defendant were designed to prevent the plaintiff from pursuing a complaint. It is clear that this had a devastating impact on the plaintiff and the Court accepts his reasons for failing to make another complaint until 2010, namely that his psychological difficulties and fear of rejection and humiliation at being disbelieved were so great as to disenable him to initiate a further complaint. Making a complaint to the Gardaí or other relevant authority in order to initiate proceedings is a difficult step for many victims of sexual abuse to take. It requires a considerable degree of courage and is often only achieved after a lengthy period of time has elapsed and with the support of counsellors and other professionals. I am satisfied therefore, given the plaintiff’s fear of rejection and humiliation and his psychological state as detailed in the medical reports and his own evidence, that this ‘second’ period of delay is also excusable. The Court has considered the extensive legal submissions of both parties and reiterates the position in relation to the jurisprudence in delay cases as eloquently expressed by the Supreme Court in McBrearty and by Peart J. in McH as outlined above. In addition to the well established principles as set out in the seminal cases of Rainsford and Primor, there is an overlapping line of authority which derives primarily from the decisions in the O’Domhnaill and Toal No.1 and No.2 cases. These latter cases make clear that even where there is no culpability on the part of a plaintiff, as in the present case, the Court may still dismiss proceedings in the interests of justice. The issue for the Court to consider in this regard is whether or not the prejudice suffered by the defendant as a result of the passage of time requires the proceedings to be dismissed having regard to the balance of justice. The most important witness in these proceedings, as far as the defendant is concerned, passed away in 1997. Brother Majella’s death means that there is no witness who can directly challenge the plaintiff’s version of events. Nor can the plaintiff confront this witness directly with his account of what is alleged to have occurred. There is a lack of relevant documentary evidence and potentially important records have been destroyed. The lapse of time means that even if any indirect witnesses could be identified, which is highly unlikely, their recollection of events would likely be unreliable. It is clear therefore that there is substantial prejudice to the defendant as a result of the delay. However, in deciding where the balance of justice lies, the Court must also consider whether the defendant is to blame in whole or in part for any period of this delay. Crucial to this consideration is the status of the various documents in relation to the defendant’s investigation of the alleged abuse. It is the plaintiff’s position that the untyped and undated memo of Fr. Callanan, as corroborated by the letter of January 1994 from David Fitzgerald of the Stroud Institute, unequivocally indicates that the defendant had made a finding that the abuse did occur but nevertheless misled the plaintiff and informed him that Brother Majella was innocent of all of he allegations. The defendant denies that such a finding was ever made and the affidavit of Fr. Callanan as discussed in detail above rejects the construction placed on these documents by the plaintiff. The Court is of the view that at this remove, and having regard to the position set out by the author of this memo; the open-textured nature of the document; and the substantial prejudice suffered by the defendant, these documents are not sufficient to tip the balance of justice in favour of the plaintiff. The existence of this document only serves to compound the defendant’s difficulty in being able to defend these proceedings after such a lapse in time. DECISION |